Terminating an AWOL Employee (Returning From Workers Comp)

elaine61

We would like to terminate an employee returning from a Workers Comp claim who did not show up or call on the date he was scheduled to return to work. We did not hear from him until four days later. An employee is considered to have abandoned his/her job if absent for two or more consecutive days without reporting or calling. Without boring you will all the details, let me just provide some additional information, that's leading us to this decision.

We contacted the spouse the afternoon of the 2nd day, that afternoon at her work number. The spouse left a voice mail message stating the employee had a medical condition that was not related to the Workers Comp issue, he was in the hospital, but would out by Friday. I called the spouse to get the name and address of the hospital so we could send a plant. (The whole workers comp situation has been suspicious. And her message lead me to believe that there was something else going on.) The spouse never returned my call. The employee called his Manager on the fourth day, and after much rambling admitted that he did not report to work because of a DUI.

Because of the nature of our business, we could not hold this position open for this person, but needed to place someone else or run the risk of losing the position. (We work on a project basis.) Because we don't have a position now
for this individual, ordinarily a layoff would be the next step. But because of his failure to report to work or to call a termination might be more appropriate. In either case, there's the concern that the employee might feel that he's being discriminated against. He was returning with some restrictions due to his injury. He's made several comments while he was off that he's thinking about suing the insurance company because of the way they've handled his case.

Any suggestions or recommendations for handling this?

Thanks.

HRsage

Let's see, here are my initial thoughts on this. I don't know if I would term for job abandonment since you made initial contact with the spouse and acknowledged her reason given to you for the absences. I think I would term for lying about the reason he was out, unless the ee really was in the hospital from the DUI. Job abandonment for us means that we had no idea where or why the ee was out. You had some idea through contact from the spouse that you started- we don't accept call outs from relatives by the way-, but the reason given turned out to be an invalid one and that's how I would pursue it either with written discipline or termination. But let's see what the other wise ones on the forum have to say, I could be out in left field with this.

Rockie

If you have your ducks in a row concerning his actual return date, you have that portion covered. If he was hospitalized, he would probably qualify for FMLA (depending on why). If he was in jail for DUI,which I suspect is the case,I would not hesitate to term.

In a WC case, you just have to be very, very careful that his termination does not even bear a whiff of retaliation. Certainly, you would be justified in the DUI case.

Balloonman

I would bring him in, and conduct a thorough questioning as to why he was out. Then if it turns out that the reason was a lie, no hospitalization, and it was dui I would terminate. However the employee did not lie to you the spouse did. Failure to call or show for the would be reason for me to terminate.
My $0.02 worth.
DJ The Balloonman

Whatever

If an employee does not return from disability when scheduled, we send out a letter laying out the facts and advising the ee that if we don't hear from them by a particular date we will assume they have abandoned the job and terminate them. In most cases, the ee submits additional medical proof of disability. In a very few cases, we terminated because ee could not submit proof they were still unable to work. In the rest of the cases, we never hear from them.

Changing topic, I would never contact a spouse to find out where an employee is.It is the employee's responsibility (and no one elses's) to contact the empoyer and no one else's. By contacting the spouse (or anyone else), you can no longer terminate the employee for abandoning the job.

Don D

I'm going to recommend: Whooooaaaaah. Sit back. Take a deep breath. Everybody seems a bit anxious to find a reason to terminate. Even spending the night in jail for a DUI can be later reversed by the system depending on his lawyer and the facts. Let it simmer, get him back to work, tell him he is on some sort of probation pending the outcome of your investigation. Is your mission to determine why he did not report for work or IF in fact he got a DUI? If he got a dui, his license will have been snatched and he'll have a temporary 30 day paper instead (in most jurisdictions). Is he a driver for you? If so, don't hesitate to ask him to produce his license. If he has a temporary one, it will show the breath alcohol level and state a pending suspension. But the DUI is not a certainty until the court system deals with it, IF it even exists.

Forget what the wife told you. Let's consider this: What if the secretary to the CEO had toe surgery as a result of stumping it at work. And she was scheduled to return to work today and told you that, but did not come in. Would you be looking right now for a reason to terminate? Certainly not; and you should treat this situation the same way. Wait and see what rolls out. Let your policies and job requirements (for drivers if he's one) be the determinants regarding any DUI that may stick. I'll shut up - for now.

ritaanz

I kinda agree with Don. x:o But...I see that you stated that you do not have a position to return him to work. Is it normal for your company to lay off personnel after a project is completed? If there is no work for this individual, then you should follow your company's procedures. I would not stretch this into a termination unless his attendance was a problem in the past and these days put him over the limit.

Balloonman

Good points by all, the best point is from Whatever, DO NOT call home inquiring as to where the employee is. It destroys your ability to use no call no show as a way to terminate an undesirable employee. It is the employee' s responsibility to contact the employer per policy. It also prevents your unemployment account from being charged when they are termed for no call no show.
My $0.02 worth.
DJ The Balloonman